Wednesday, October 12, 2011

ERSP held its first Advertising Week Summit on October 6, 2011 at Lucille's Bar & Grill in NYC.

The panelists provided guidance on how to use testimonials and endorsements in social media. Even with the proliferation of word-of-mouth marketing and social media, many of the ground rules for testimonials and disclosure haven't been set. With this in mind, a running theme throughout both panels was whether an organic conversation on a platform such as Facebook could become a testimonial/endorsement. User-generated content is becoming more and more popular, but there is little precedent regarding how this type of content is approached from a regulatory standpoint. Regardless, all of the panelists encouraged companies to monitor what affiliates and consumers are saying on social media about their products and to ensure that unrealistic claims are not being made.

The panelists also explained the key changed to the FTC's Guides Concerning the Use of Endorsements and Testimonials in Advertising. The Guides were revised back in 2009 to more accurately reflect the use of "new media" in advertising. With the "Results not typical" safe harbor eliminated, the panelists explained different ways of approaching the disclosure of material connections and typical product performance.

ERSP found the panels to be very engaging and informative and would like to thank the panelists for leading the discussion. We hope you enjoyed the event!

Thursday, October 6, 2011

New York, NY – Oct. 6, 2011 – The Electronic Retailing Self-Regulation Program (ERSP) has determined that Springbak can support certain claims for the company’s “Springsoles.” The marketer agreed to voluntarily modify other claims as recommended by ERSP.

ERSP, the electronic direct-response industry’s self-regulatory forum, is administered by the Council of Better Business Bureaus (CBBB) with policy oversight by the National Advertising Review Council (NARC).

The marketer’s advertising came to ERSP’s attention pursuant to its ongoing monitoring program.

ERSP reviewed online and broadcast advertising for Springsoles and identified several claims for review, including:

·“Springbak scientifically cushion your feet upon impact. The patented materials give you a spring effect that excels and pushes you up to run faster, jump higher, and with the molecular bonding, actually amplifies your strength and performance.” and “Guaranteed to help ease your feet and joint pain, improve your stability, and increase your athletic performance.”

·“We got to the state championships for the first time without one injury and I know for sure it was Springbak.” and “We strength tested 21 of our track athletes. They were able to do 35% more clap push-ups wearing the Springbak® Springsoles, despite fatigue and the breakdown of lactic acid in their arms and shoulders from the first trial.” [Dave Houle]

·“I was able to do just one repetition performing an overhead press with a 55 lb. dumbbell. After resting 3 minutes I pulled off the same 55 lb. dumbbell and promptly did eight overhead presses while using the Springbak® Springsoles.” [E.J. Cafaro]

As support for the performance claims at issue, Springbak submitted a variety of studies conducted by several college coaches. However, ERSP found many of the studies to be inadequate support for the claims as they were conducted on a small sample of subjects with little to no control parameters or statistical significance. Although the testing did provide a reasonable basis for the claim that consumers will “run faster,” ERSP recommended that Springbak discontinue health and safety (e.g., “…help ease your feet and joint pain”) and establishment claims.

A number of the testimonials featured in the advertising make several representative and qualified claims. Following a review of the evidence, ERSP determined that the information submitted by Springbak could not adequately support the claims in question and that the results stated in the testimonials were not demonstrated to be “typically expected by consumers.” Thus, ERSP recommended that the claims be modified or discontinued.

The company, in its marketer’s statement, said it “…feels ERSP has been extremely fair in its assessments and suggestions. The suggestions have been implemented on the Springbak website. We look forward to working with ERSP in the future.”